JUDGMENT

R. K. PATRA, J. — Validity of Clauses 6 and 7 of the order of the Government in the Forest and Environment Department communicated in letter No. 17811/F&E. dated 7.11.2000 (Annexure-1) is the subject matter of challenge in this writ petition. Under the im¬pugned Clause 6, the Divisional Forest Officers have been empow¬ered for regulating the transport of Sal leaves including leaf plates and leaf cups made out of Sal leaves by issue of transit per¬mits. As per the impugned Clause - 7, royalty is leviable at 5% of the collection price of Sal leaves.

By the Government order of the Forest and Environment De¬partment contained in letter No. 20437/F&E dated 20.12.2000 (Annexure-A/3) levy of royalty stipulated under the aforesaid Clause -7 has been withdrawn. Therefore, the writ petition chal¬lenging the impugned Clause - 7 has become infructuous. What now remains to be decided is the validity of the impugned Clause - 6 of the Government order (Annexure-1).

2. The petitioners are traders and transporters of leaf plates and leaf cups made out of Sal leaves. Their case is that they have been transporting finished leaf plates and leaf cups made out of Sal leaves to different places in the State as well as outside the State without any objection from any departmental authorities. By trading and transporting leaf plates and leaf cups not only they earn some income, they also help the primary collectors of Sal leaves to earn their livelihood by making finished items as leaf plates and leaf cups out of Sal leaves. By production of finished items like leaf plates and leaf cups, the original nature of Sal leaves lose their identity and therefore, they cannot be regarded as “forest produce”. As such, for transport of leaf plates and leaf cups, no transit permit is necessary. According to them, the impugned Clause-6 of the Govern¬ment order contained at Annexure-1 is illegal and arbitrary being violative of the provisions of Articles - 14 and 19 of the Constitution.

The opposite parties have filed their counter affidavit justifying the necessity of transit permit in respect of trans¬port of leaf plates and leaf cups made out of Sal leaves.

3. The first question that arises for consideration is whether the Sal leaves can be held to be “forest produce” ?

Section 2 (g) of the Orissa Forest Act, 1972 defines “forest produce” as follows :

“Sec. 2(g) : “Forest produce” includes -

(i) the following whether found in, or brought from a forest or not, that is to say -

(a) timber, charcoal, caoutchouc, catchu, wood-oil, resin, nature varnish, bark, tussar cocoon, lac, gums, roots of Patal Garuda, Mahua flower, mahua seeds, myrabolans, kendu leaves, sandal wood, tamarind, hill-broom, siali leaves, siali fibres, sal seeds;

(b) xx xx xx

(c) xx xx xx

(ii) the following when found in or brought from a forest, that is to say -

(a) trees and leaves, flowers and fruits and all other parts or produce or trees not herein before mentioned;

(b) xx xx xx

(c) xx xx xx

(d) xx xx xx

(emphasis supplied)

“Sal leaves” has not been itemised as “forest produce” in Section 2(g)(i)(a) (supra). Item “Sal leaves” however comes within the definition of Section 2(g)(ii)(a) (supra) in view of the fact that they are found in and brought from forests and have not been mentioned in Section 2(g)(i). Therefore, we have no hesitation to hold that the item "Sal leaves” is a forest produce.

4. The next question is whether by making leaf plates and leaf cups out of Sal leaves, the latter lose their identity. The contention of the petitioners is that with the making of leaf plates and leaf cups a new product comes into existence, thereby Sal leaves lose their identity. In this connection, the petition¬ers heavily relied on order of this Court dated 7.5.1987 in OJC No. 1503 of 1987 (Rusi Sahu v. State of Orissa). judgment dated 13.5.1998 in OJC No. 6972 of 1995 (Bhagaban Das Agarwalla v. State of Orissa, 86 (1998) C.L.T. 155) as well as order dated 22.12.1989 of the Calcutta High